Concurring: This case presents no question of a denial of the right to vote nor is there suggestion that illegal ballots were cast. The sole question for determination is the power of a County Board of Elections, upon suggestion of error in tabulating the vote at a primary election, to order a recount of the ballots before the canvass has been completed.
I think this power expressly given by statute, G.S. 163-143, which provides: “When, on account of errors in tabulating returns and filling out blanks, the result of an election in any one or more precincts cannot be accurately known, the county board of elections and the State Board of Elections shall be allowed access to the ballot boxes in such precincts to make a recount and declare the results, which shall be done under such rules as the State Board of Elections shall establish to protect the integrity of the election and the rights of the voters.” This was a part of the original Act providing for primary elections. I find no statute limiting the power given, nor have I found any decision which in my opinion limits the power expressly conferred. To the contrary, prior decisions, when interpreted in the light of the questions which the court was called upon *211to answer, seem to me to clearly recognize the right of a County Board to order a recount in primary elections to ascertain if an error was made in tabulating the vote. In Brown v. Costen, 176 N.C. 63, 96 S.E. 659, plaintiff, seeking to restrain the certification of his opponent, expressly alleged a correct tabulation of the ballots actually cast. He based his right to relief on the assertion that a number of qualified voters sufficient to affect the result had been denied the' right to vote. Justice Hoke, in denying plaintiff’s right to challenge and the power of the County Board to change the result because of an asserted denial of the right to vote, was careful to direct attention to the statute which gave to the County Boards the right to determine the accuracy of the tabulation. That is what the Harnett County Board did and all it did.
The conclusion reached in Burgin v. Board of Elections, 214 N.C. 140, 198 S.E. 592, with respect to the recount of the Union County ballots, I think supports the view here expressed.
I do not think we are now called upon to determine what additional power may have been given County Boards by subsequent legislation.
The right of Count}*- Boards to ascertain if error of tabulation exists must, by the terms of the statute, be exercised in conformity with rules promulgated by the State Board. The applicable rule reads:
“When any controversy shall arise with respect to the counting of the ballots, or the certification of the returns of the vote, in any primary or general election, in any precinct or precincts, any candidate or elector desiring to make any complaint or protest regarding same shall make such protest in writing to the County Board of Elections on or before the time fixed by the statutes for the canvassing of the votes for such primary or general election by the County Board of Elections, and said County Board of Elections may determine the controversy at said meeting or at any time hereinafter specified.
“If, after the canvass is completed by the County Board of Elections, any candidate or candidates, participating in such primary or election, demands a recount by the County Board of Elections in any one or more precincts in the county, and presents sufficient evidence by affidavit tending to show errors in the canvassing of said votes by the County Board of Elections, either because of an error in the tabulation thereof or because of the counting of alleged illegal ballots, in an amount alleged to be sufficient to change the results of the nomination or election of such candidate or candidates, then this demand for the recount must be made to the chairman *212or secretary of the County Board of Elections, in writing, by 6 o’clock p.m. on or before the second day following the completion of the original count by said County Board and the declaration by it of the results of said primary or election. The County Board of Elections shall thereupon, within the time prescribed, meet to consider this demand for a recount.”
Hill asserted errors in tabulating ballots and filed a written request for • a recount with the County Board before the time fixed for the Board to canvass the returns. And the County Board, before canvassing the vote, considered the affidavit asserting errors of tabulation and “reached the conclusion that there might be errors in counting the ballots by precinct officials and therefore decided to recount.” This decision was announced by the chairman in the presence of both candidates.
The quoted rule draws an appropriate distinction between a recount which may be ordered before and after the canvass is completed. In acting before the canvass was completed, the County Board was, by the first paragraph of the rule, authorized to recount. In so acting it was complying with its statutory duty “to protect the integrity of the election and the rights of the voters.”
For these reasons my vote is to affirm.
Denny and PARKER, J. J., join in concurring opinion.